Pegasus Issue: National Security Cannot Be The Bugbear For Judiciary, Says Supreme Court
The Supreme Court of India has set up a committee to look into the allegations of the use of spyware Pegasus against journalists, activists and members of the civil society, among others.
The three-member technical committee comprises:
Naveen Kumar Chaudhary, professor (cyber security and digital forensics) and dean, National Forensic Sciences University, Gandhinagar, Gujarat.
Prabaharan P, professor (school of engineering), Amrita Vishwa Vidyapeetham, Amritapuri, Kerala.
Ashwin Anil Gumaste, institute chair associate professor (computer science and engineering), Indian Institute of Technology, Bombay, Maharashtra.
The committee will be overseen by retired Supreme Court judge Justice RV Raveendran. He will be assisted by former Indian Police Service officer Alok Joshi and Sundeep Oberoi, chairman, sub-committee in (International Organisation of Standardisation/International Electro-Technical Commission).
The committee has been granted the power to take statements of any person in connection with the enquiry and call for the records of any authority or individual.
The top court bench, presided by Chief Justice of India Justice NV Ramana, rejected the national security argument raised by the central government for not filing a detailed reply on the petitions seeking the probe.
The court noted that the petitioners have placed material that prima facie requires consideration by the court. On the part of the government, there has only been an omnibus and vague denial in the limited affidavit and that cannot be sufficient, it said.
The Chief Justice of India read out the circumstances that led to the apex court's decision to set up the committee.
Right to privacy and freedom of speech were alleged to be impacted and that needs to be examined.
The entire citizenry is affected by such allegations due to the potential chilling effect.
No clear stand taken by the Union of India regarding actions taken by it.
Serious concerns of foreign agency involvement.
Possibility that some foreign authority, agency or private entity is involved in placing citizens of this country under surveillance.
Allegations that the Union or state governments are party to the deprivations of citizens' rights.
Compelled To Determine The Truth:
The top court in the judgment said that it was not satisfied with the initial set of petitions which only relied on certain newspaper reports.
Such an exercise, far from helping the cause espoused by the individual filing the petition, is often detrimental to the cause itself. This is because the court will not have proper assistance in the matter, with the burden to even determine preliminary facts being left to the court.Supreme Court of India
However, in this case, two things convinced the court that this was a fit case for an intervention.
First, petitions filed by purported victims of the spyware.
Second, the sheer volume of cross-referenced and cross-verified reports from various reputable news organisations across the world along with the reactions of foreign governments and legal institutions.
The Chief Justice of India-led bench also took note of the fact that some of alleged victims of the spyware were journalists. The Editors Guild of India is one of the petitioners in the case.
The judgment highlights the importance of protecting sources for an independent press and the potential chilling effect of snooping techniques assumes greater significance in the case.
In this light, the court said it's compelled to take up the cause to determine the truth and get to the bottom of the allegations made.
The government’s approach in this case was also a reason why the court chose to order the probe.
Course Of Action Taken By Government Cannot Be Accepted: Supreme Court
The central government in this case filed only a short affidavit where it issued a blanket denial of all the allegations made in the batch of petitions.
The top court during the hearing asked the central government on more than one occasion if it would like to file a detailed response. Even after reserving the judgment, the bench had told the central government that the government was free to a file a detailed response. The central government till the end did not avail the opportunity giving the reason that the issue relates to national security.
The argument did not cut ice with the bench.
The top court said that it cannot accept the course of action taken by the government in this case which touches upon the fundamental rights of the citizens.
The court acknowledged that when it comes to security concerns, the scope of judicial review is limited.
The apex court said the government may decline to provide information when constitutional considerations exist, such as those pertaining to the security of the state.
However, this does not mean that the State gets a free pass every time the spectre of “national security” is raised. National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. Although this Court should be circumspect in encroaching upon the domain of national security, no omnibus prohibition can be called for against judicial review.Supreme Court of India
The judgment notes that there was no specific denial of any of the facts averred by the petitioners.
The top court rejected the government's proposal to set up its own committee on the basis that such a order will violate the settled judicial principle against bias.
Besides looking into the Pegasus allegations, the committee has also been tasked to suggest surveillance reforms. The terms of reference include:
To enquire whether Pegasus suite of spyware was used on phones or other devices of the citizens of India.
What actions were taken by the government after 2019 reports on hacking of WhatsApp accounts using Pegasus.
If any government agency, including state government agencies, has used Pegasus and the procedure followed for such deployment.
Recommend changes in existing law surrounding surveillance and securing an improved right to privacy.
Recommend measures to prevent unlawful invasions of citizen‘s right to privacy using such spywares.
Recommend measures regarding establishment of a mechanism for citizens to raise grievances on suspicion of illegal surveillance of their devices.
The bench has asked all the governments and their agencies to extend full facilities to the committee in its functioning. The committee has been requested to prepare the report and place it before the court expeditiously.
The case will next be taken up the case after eight weeks.